Ellison, Rickey
PD-1157-15
Tex. App.Nov 13, 2015Background
- 1981 crimes: Jimmy Milo (murder), Cassandra Jackson (murder), abduction of Barbara Scott, and attempted murder of Deputy Lacey; State alleged a single two-shot derringer was used in multiple incidents.
- Evidence: bullets recovered from Milo, Jackson, and Lacey scenes; a derringer later recovered from mud after Ellison’s 1981 arrest; the original derringer and some documentation were lost by trial time and only a photocopy remained.
- DPS ballistics work: Fred Rymer (firearms examiner) performed the original 1981 test-firing and comparisons; Rymer is deceased at the time of the 2011 Milo trial. Calvin Story (DPS examiner) re-examined evidence and verified Rymer’s prior work and also performed independent comparisons of evidence bullets.
- Defense contention: Story lacked personal knowledge of the provenance of Rymer’s test bullets and thus, by testifying that the evidence bullets matched the derringer, necessarily conveyed inadmissible testimonial hearsay from the deceased Rymer in violation of the Confrontation Clause and the hearsay rules.
- Procedural posture: Ellison convicted of Milo’s 1981 murder in 2011; Eleventh Court of Appeals affirmed, rejecting Confrontation and hearsay challenges and finding any error harmless; petition for discretionary review filed challenging that ruling.
Issues
| Issue | Ellison's Argument | State's Argument | Held |
|---|---|---|---|
| Whether ballistics testimony that relied on a deceased examiner’s test-firing violated the Confrontation Clause | Story’s testimony necessarily conveyed Rymer’s out‑of‑court, testimonial assertions about the origin of the test bullets; Rymer’s unavailability deprived Ellison of confrontation | Story had independent personal examination and opinions; Rymer was previously cross‑examined at a 1982 trial so prior opportunity satisfied confrontation | Court of Appeals: No Confrontation violation; Rymer was unavailable and had been subject to prior cross‑examination; Story testified to his own opinions so admission was proper (and any error harmless) |
| Whether Story’s testimony was inadmissible hearsay (expert as conduit) | Allowing Story to state that evidence bullets “came from” the derringer effectively admitted Rymer’s out‑of‑court assertions for their truth in violation of hearsay rules and Rule 703/705 limits | Rule 703 permits experts to rely on otherwise inadmissible materials; experts may form opinions on other analysts’ test results; Story’s testimony was the expert’s opinion, not direct hearsay | Court of Appeals: Overruled hearsay objection under Rule 703; even if erroneous, admission was harmless under Rule 44.2(b) because evidence was cumulative and corroborated |
| Admissibility of chain‑of‑custody photo and envelopes | Photo/envelopes contained hearsay and were improper | Photo explained lab procedure and corroborated Story’s testimony; not offered for truth of underlying assertions | Court of Appeals: Photo admissible for demonstrative/explanatory purposes; any error harmless |
| Identification of victim and medical examiner testimony (Confrontation/hearsay) | Dr. Bayardo identified the body relying on police information, so his ID testimony was hearsay/violated Confrontation | Detective Villegas (who knew Milo) also testified and was cross‑examined; identity was otherwise established | Court of Appeals: Any error harmless because Vidlegas’ testimony and other evidence established identity |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars testimonial out‑of‑court statements unless witness unavailable and defendant had prior opportunity for cross‑examination)
- Williams v. Illinois, 567 U.S. 50 (2012) (plurality) (experts may rely on otherwise inadmissible evidence to form opinions, but underlying out‑of‑court statements are not admitted for their truth by virtue of the opinion)
- Aguilar v. State, 887 S.W.2d 27 (Tex. Crim. App. 1994) (an expert may base an opinion on hearsay material; the opinion itself is not hearsay)
- Martinez v. State, 22 S.W.3d 504 (Tex. Crim. App. 2000) (Rule 703 permits experts to rely on inadmissible evidence in forming opinions; underlying details are not independently admitted)
- Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990) (caution that experts should not be used merely as conduits to introduce inadmissible evidence)
- Scott v. State, 227 S.W.3d 670 (Tex. Crim. App. 2007) (harmless‑error framework for constitutional Confrontation Clause violations)